23 FLRA No. 95
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
SERVICE EMPLOYEES INTERNATIONAL
UNION, AFL-CIO
Union
and
MISSOURI NATIONAL GUARD
Agency
Case No. 0-NG-1300
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and concerns the
negotiability of one Union proposal. The proposal, which appears in the
Appendix to this Decision, essentially provides that National Guard
civilian technicians will be given the option of wearing standardized
civilian attire rather than the military uniform. Based on the
following, we find the proposal nonnegotiable.
II. Positions of the Parties
The Union asserts that its proposal is an appropriate arrangement for
employees adversely affected by the Agency's decision to require
civilian technicians to wear the military uniform and is negotiable
under section 7106(b)(3) of the Statute. In support of its contention,
it relies on the Authority's decision in American Federation of
Government Employees, Local 217 and Veteran's Administration Medical
Center, Augusta, Georgia, 21 FLRA No. 13 (1986). It characterizes that
decision as standing for the proposition that, while the decision to
require employees to wear a uniform may be a management right, the type
of uniform is negotiable as an appropriate arrangement. It asserts
that, in light of its decision in Veterans Administration, the Authority
should reconsider its previous decisions on the issue of National Guard
civilian technicians wearing the military uniform and requests that the
Authority conduct a hearing on the matter. It further asserts that,
when measured against the criteria which the Authority has articulated
for determining whether a matter is negotiable as an appropriate
arrangement, /1/ this proposal constitutes an arrangement for adversely
affected employees which does not excessively interfere with the
Agency's right to determine its internal security practices. /2/
The Agency notes that the Authority has held that the requirement
that civilian technicians wear the military uniform is a methods and
means of performing work within the meaning of section 7106(b)(1) of the
Statute. For example, Division of Military and Naval Affairs, State of
New York, Albany, New York Council, Association of Civilian Technicians,
15 FLRA 288 (1984), aff'd sub nom. New York Council, Association of
Civilian Technicians v. FLRA, 757 F.2d 502 (2d Cir. 1985), cert. denied
106 S.Ct. 137 (1985). It argues that the Union's proposal in this case
is not an appropriate arrangement because it excessively interferes with
the Agency's right under section 7106(b)(1) in that it would totally
eliminate the right to determine the methods and means of performing
work.
III. Analysis and Conclusions
A. The Circumstances in Veterans Administration, 21 FLRA
No. 13, Are Distinguishable from Those Present Here
In the Veterans Administration case, the record established that the
purpose of requiring employees to wear a uniform was to allow ready
identification of employees for security purposes. In that context, the
Authority found that negotiation over the specific type of uniform did
not interfere with the purpose for which the uniform requirement was
adopted. However, the purpose of lthe uniform requirement, insofar as
National Guard technicians are concerned, is different. The National
Guard Bureau requires technicians to wear the military uniform to foster
military discipline, promote uniformity, encourage esprit de corps,
incrrease the readiness of the military forces for early deployment and
enhance identification of the National Guard as a military organization.
/3/ Given that context, the type of uniform, i.e., a military uniform,
is critical to achieving the purpose for which the Agency has adopted
the uniform requirement.
In view of the different circumstances present in the two cases, no
reconsideration of the Authority's previous determinations in the
National Guard cases is called for and the Union's request for a hearing
is denied.
B. The Union's Proposal Does Not Constitute an Appropriate
Arrangement
The Union has identified several instances where it contends that
employees have been adversely affected as a result of the Agency's
requirement that they wear the military uniform. Assuming that the
Union's contentions are accurate, the Authority finds that, in view of
the relationship between the military nature of the uniform and the
purpose for which the uniform requirement was adopted, a proposal
allowing employees to elect to wear a nonmilitary uniform would negate
the Agency's right to determine the methods and means of performing
work. A proposal which in this manner totally abrogates the exercise of
a management right excessively interferes with the right and is not
negotiable as an appropriate arrangement under section 7106(b)(3). See
American Federation of Government Employees, AFL-CIO, Local 3186 and
Department of Health and Human Services, Office of Social Security Field
Operations, Philadelphia Region, 23 FLRA No. 30 (1986) (Proposal 1).
This is not to say, however, that under all circumstances proposed
exceptions to the uniform requirement must be found non-negotiable. See
National Association of Government Employees, Local R3-84, SEIU, AFL-CIO
and District of Columbia Air National Guard, 23 FLRA No. 73 (1986), in
which the Authority found negotiable a proposal which excepted employees
from the uniform requirement when engaged in specified labor-management
activitgies. Thus, some portions of the Union's proposal which seek
specific exceptions to the uniform requirement might be found
negotiable, if severed from a proposed overall option of wearing
nonmilitary attire. We do not consider this question further here. The
Authority generally does not consider parts of a proposal separately,
unless the parties specifically so request, which was not done in the
present case. See Local 32, American Federation of Government Employees
v. FLRA, 774 F.2d 498, 505 (D.C. Cir. 1985).
IV. Order
Pursuant to section 2424.10 of the Authority's Rules and Regulations,
IT IS ORDERED that the Union's petition for review be, and it hereby is,
dismissed.
Issued, Washington, D.C. October 31, 1986.
/s/ Jerry Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) National Association of Government Employees, Local R14-87 and
Kansas Army National Guard, 21 FLRA No. 4 (1986).
(2) Contrary to the Union's statement, the Agency has not asserted
that the proposal conflicts with its right under section 7106(a) to
determine its internal security practices.
(3) See Division of Military and Naval Affairs, State of New York,
Albany, New York, 15 FLRA 288 (1984).
APPENDIX
Section 12.
A. Excepted Technicians throughout the State shall wear an
agreeed-upon Standard Civilian Attire (SCA).
B. Exception: Excepted Technicians who wish to remain in the
military uniform shall, within 30 days from the date of approval of this
Agreement, or 30 days from the date of employment, whichever comes
later, notify the Technician Personnel Officer (TPO), in writing, of
their intent to remain in the military uniform. Upon receipt of such
notice by the TPO, they shall remain in the military uniform for the
life of this Agreement.
C. The military uniform will continue to be worn by all excepted
Technicians:
(1) When engaged in recruiting/retention activities, provided the
Technicians have advance knowledge of such activities;
(2) When serving as a crew member or non-crew member, or riding as a
passenger in a military aircraft;
(3) During all higher headquarters inspections or announced visits of
officials higher than State Headquarters;
(4) When in TDY status to a military installation, unless such wear
is exempted by policy guidance or regulation from higher authority;
(5) When working in Technician status in support of UTAs, AT, or any
other military function involving Drill-Status Guardsmen (DSGs) in a
military duty status; and
(6) When actively serving on a Base Defense Force.
D. Neither the Military uniform nor the SCA will be worn by
Technicians:
(1) When in an official travel status while traveling by commercial
or private transportation;
(2) When attending courses of instruction in a Technician status at
locations other than military installations, facilities or complexes,
except as required by the facility conducting the course;
(3) When serving as labor representatives while engaged in labor
agreement negotiations; and
(4) While participating as data collectors du